FSGB: A Separation For Cause Case That Will Make You Weep

The FSGB Annual Report for 2020 includes a brief summary of a separation for cause case:
“In FSGB Case No. 2019-034, the Board found that the agency did not establish cause to separate the charged employee from the Foreign Service because the Deciding Official did not consider evidence of personality problems or more serious mental issues as a mitigating circumstance in determining whether separation was appropriate, as required by the Douglas Factors.2 The employee in the case was charged with improper personal conduct with a pattern of unprofessional and inappropriate conduct toward colleagues. The agency’s Bureau of Medical Services determined that the charged employee exhibited behavior or symptoms that impaired his reliability, judgment, or trustworthiness which was reported to management in a report of security investigation. The Deciding Official did not take into consideration those findings when proposing separation. The agency filed a motion for reconsideration which was ultimately denied. The Board suggested that the Department consider whether the charged employee was eligible for disability retirement.”
Excerpts below from the Record of Proceeding (ROP) posted via FSGB (multiple files related to this case).
FSGB Case No. 2019-034/July 2, 2020:

Held – The Board found that the Department of State (the “Department” or “agency”) did not establish cause to separate the charged employee from the Foreign Service because the Deciding Official (“DO”) did not consider evidence of his personality problems as a mitigating circumstance. The Board was persuaded by evidence in the record that the agency should exercise its authority to initiate, as an alternative to separation, the option of a disability retirement, pursuant to 3 FAM 6164.3(a).

Case Summary – The Department charged the employee with Improper Personal Conduct based upon a pattern of unprofessional and inappropriate conduct toward colleagues, primarily hundreds of unwanted emails and text messages with sexual content. The Department’s Bureau of Medical Services (“MED”) had conducted a mental health evaluation of the charged employee and concluded that “to a reasonable degree of certainty,” the charged employee exhibited “behavior or symptoms (which may not rise to the level of formal diagnosis) of an emotional, mental or personality condition that may impair his reliability, judgment or trustworthiness.”

The DO determined that the charged employee committed the charged offenses and that there were no mitigating circumstances. In finding no mitigating circumstances, the DO attested in the separation hearing that she did not take into consideration either the charged employee’s emotional, mental or personality condition that MED identified or the charged employee’s emails to coworkers that included references to his communications with divine beings as well as references to his own possible mental illness. The DO notified the charged employee of her proposal to separate him from the Foreign Service and provided him the opportunity to reply in person or in writing. The DO recommended separating the charged employee to promote the efficiency of the Service. The charged employee did not respond in person or in writing to the DO’s notification of her proposal to separate him from the Service recommendation or participate in the separation hearing.

The Board found the Department did not establish cause to separate the charged employee because the DO did not consider the so-called Douglas Factor #11 on the agency’s checklist that relates to mitigating circumstances surrounding personality problems, and did not exercise the agency’s authority under 3 FAM 6164.3(a) to initiate a disability retirement on behalf of the charged employee as an alternative to disciplinary action.

Background via FSGB Case No. 2019-034R/September 24, 2020

Prior to the conduct that gave rise to the Department’s proposal to separate the charged  employee, he had 19 years of distinguished service.

In March 2015, the Department issued a Letter of Reprimand to the charged employee on  a charge of Improper Personal Conduct (“IPC”) for allegedly making “unwelcome comments of an inappropriate and sexual nature” to an intern at post. In January 2016, the charged employee was alleged to have engaged in sexual harassment. The Ambassador involuntarily curtailed the charged employee from an overseas post in February 2016. After his curtailment, the charged employee sent numerous personal emails to a former post colleague that she foundoffensive. Despite her request that he stop sending her messages, he continued to do so. Consequently, the former colleague filed a request for a protective order with a court and the request was granted.

The FSGB filing does not indicate what treatment resulted from MED’s evaluation.

— In January 2018, the DS Office REDACTED issued another ROI (involving different preliminary allegations), finding, inter alia, that the charged employee had demonstrated a predilection for self-aggrandizement, and had indicated his belief of hearing voices and instructions from God, the Devil, and the Virgin Mary.

— In October 2018, the charged employee’s security clearance was revoked.

— On March 21, 2019, the Director General of the Foreign Service and Director of the Bureau of Human Resources3 (the “DG”) notified the charged employee that the Department proposed to separate him for cause to promote the efficiency of the Service. The charged employee was charged with IPC based upon 87 specifications of unprofessional and inappropriate conduct and comments toward colleagues, primarily in emails and text messages with sexual content. The separation proposal was not based upon the charged employee’s loss of security clearance.

— Although the charged employee was offered an opportunity to provide an oral or written response to the DG’s March 21, 2019 proposal, he did not provide a response.

(Also see Secretary Mike Pompeo Swears-In New DGHR Carol Perez on March 15, 2019)

On June 20, 2019, the DG completed the so-called Douglas Factors Checklist, a compilation of aggravating and mitigating factors drawn from 3 FAM 4137 and from the decision of the Merit Systems Protection Board (the “MSPB”) in Douglas v. Veterans Administration, 5 MSPB 313 (1981). On that Checklist, the DG wrote “none” next to so-called Douglas Factor #11, “Mitigating circumstances surrounding the offense, such as unusual job tensions, personality problems . . . .”

(Also see  Snapshot: Douglas Factors)
(Also see 3 FAM 4138)

On August 18, 2019, the Department filed a Separation for Cause Proposal with the Board. The charged employee did not file a response to the proposal or participate in the hearing that the Board conducted by telephone on May 14, 2020. AFSA participated as amicus curiae.

The Board issued its Decision on July 2, 2020, finding that the Department had established by a preponderance of the evidence that the charged employee had engaged in the unprofessional and inappropriate conduct of which he was accused and that the charged employee’s conduct had a nexus to the efficiency of the Service. However, the Decision concluded that the Department had not established cause for separation of the charged employee when the DG did not comply with 3 FAM 4138 because she did not consider the Department’s version of Douglas Factor #11:

 Mitigating circumstances surrounding the offense, such as unusual job tensions, personality problems, harassment or bad faith, malice or provocation on the part of other(s) involved in the matter.

The Decision noted that the DG had written the word “none” next to Factor #11, yet in her testimony at the May 14, 2020 hearing, she opined that the charged employee “had abnormal behavior,” and that it was obvious “his behavior was not normal.”

[…]

In the instant case, the Department failed to establish cause for separation by a preponderance of the evidence because the Deciding Official (in this case the DG) had failed to consider a significant relevant factor, i.e., Douglas Factor #11 as embodied in the Department’s Douglas Factors Worksheet, which the Department applies in determining whether to propose separation of an employee or a disciplinary penalty.10
In a separate FSGB document: 2019-034 – 07-02-2020:

In her testimony at the May 14, 2020 hearing, however, when asked whether concerns were raised in her mind in relation to the DS decision to revoke the charged employee’s security clearance due to several factors, including psychological conditions, the DG opined that the charged employee “had abnormal behavior,” and that it was obvious “his behavior was not normal.” The DG added, however, that she did not consider personality problems as a mitigating circumstance for the charged employee because she is not a medical professional, thus not in a position to understand if he had a personality defect for “his entire life.” She pointed out that DS ROI #2 indicated that there were allegations that the charged employee had a recurring pattern of sexual harassment, beginning during his college years, but she had no evidence of that conduct in the record to consider. The DG emphasized that in cases of threats to employees in the workforce, it is DS that makes decisions about what they would like to do in terms of an employee’s ability to access agency facilities and information. She also stressed that she had no access to the Department’s Bureau of Medical Services (“MED”) Memorandum of Opinion concerning the charged employee to which DS referred in ROI

Diplomatic Security’s two Reports of Investigation (ROIs)

The Board found that two Reports of Investigation (“ROIs”) issued by the Department’s Bureau of Diplomatic Security (“DS”) contained sufficient information for the DG to deduce that the charged employee had, at least, personality problems and that the emails and text messages the charged employee sent to former colleagues, which formed the basis of the separation proposal, indicated that he had personality problems and possibly more serious mental impairment or illness. The Decision noted that Douglas Factor #11 required the DG to consider and weigh the charged employee’s apparent personality problems in determining the appropriate discipline.

The DG’s failure to consider personality problems as a mitigating factor was the basis for our conclusion that the Department had not established cause for separation.

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FSGB: Salary Determination Per SOP 134D1? What’s that?

 

Via FSGB Case No. 2019-049:
Held – Grievant failed to establish by a preponderance of evidence that the Department of State (“Department” or “agency”) committed a grievable error in its initial determination, or its resolution of, the appeal of grievant’s salary determination. However, grievant did establish by a preponderance of the evidence that the Department erred in not following its own standard operating procedure (“SOP”) regarding the provision of notice of the right to appeal the salary determination and affording her sufficient time to prepare an appeal. The Board ordered the Department to permit grievant to submit supplemental appeal materials to a new Salary Review Committee (“SRC”).
Case Summary – Grievant became a Foreign Service generalist career candidate in 2018. She contended that in determining her starting salary for that position, the Department Office of the Registrar violated published policy and acted arbitrarily and capriciously by declining to credit a number of theatrical stage management jobs she had held as qualifying experience that would have resulted in a higher starting salary. Believing that she had less than 12 hours to appeal, grievant quickly submitted arguments to the SRC for reconsideration of the salary determination, but that body confirmed the starting salary offered by the Office of the Registrar.
Grievant accepted the position, but several months after her start date, she grieved the starting salary. She contended in her grievance that the SRC was unfamiliar with the primarily intellectual nature of stage management jobs and, therefore, wrongly concluded that some, but not all, of her stage management positions did not constitute qualifying experience. She further contended that both the Office of the Registrar and the SRC miscalculated the duration of one or more of the jobs that they found were qualifying, by interpreting her month/year description of these short-term positions as lasting to the beginning of the ending month, rather than through the entire last month. Grievant further contended that she was never given the necessary information about appeal procedures from the decision of the Office of the Registrar. She claims that, in violation of Department SOPs, she was given only a few hours, rather than the required 30 days to prepare and submit her appeal.
The Board concluded that grievant failed to establish by preponderant evidence that either the Office of the Registrar or the SRC had violated published policy or acted arbitrarily or capriciously in determining her starting salary. The Board found, however, that the Department erred by deviating from its SOPs that mandated the provision of 30-days’ notice to career candidates about the appeal procedure from decisions of the Office of the Registrar, which caused grievant to submit a rushed appeal to the SRC. The Board further concluded that the error may have been a substantial factor in the SRC’s decision to confirm her starting salary. The Board, therefore, denied the grievance in part and upheld it in part. As a remedy, the Board ordered the Department to permit grievant to submit supplemental appeal materials to a new SRC within 30 days.
[…]
The September 21 email, containing the salary offer, but none of the other information described in SOP 134D1, and the subsequent email correspondence (which informed the candidate only that “your file is marked to be reviewed”), clearly did not meet the requirements laid out in SOP 134D1. The October 4 email, containing the appointment letter, meets the requirements of the SOP, without explicitly referring to SOP 134D1. This was apparently meant to be the beginning of the review and appeal process, not the end. By not clearly distinguishing for grievant the difference between an informal preview/review process in the Registrar’s Office and the 30-day deadline for a formal appeal to the SRC, the Department committed a procedural error that generated unnecessary fog in an already rushed process. We conclude that grievant was denied a clear and meaningful opportunity to present clarifying information to the SRC. In addition, we conclude that she has established that the procedural error may have been a substantial factor in the action of the SRC. We note that she does not have to prove that the additional material that she proffered in the grievance appeal would have caused the SRC to reconsider her salary.
In cases where the Board finds procedural error that may have been a substantial factor in an agency action, the burden of proof shifts to the agency to show, by preponderant evidence, that the agency, (the SRC in this instance), would have taken the same action had the procedural error not occurred. See C.F.R. 905.1(c). The Department has explained the reasoning of the SRC, but it has not presented a persuasive argument, supported by preponderant evidence, that the outcome would have been the same had grievant been given timely notice of her right to file an appeal to the SRC, i.e., that, had it followed its own SOP, the grievant would have submitted additional documentation and the SRC would have made the same determination with respect to each of grievant’s numerous short-term stage management positions and arrived at the same grade and step level.
The Board therefore finds that the Department has not carried its burden of proving that the SRC would have come to the same result absent the procedural error. Accordingly, the Board grants grievant’s request for a reconstituted SRC to review her initial salary determination after reviewing any additional relevant information that she would like to provide, in conformity with SOP 134 D1.
Note: Depending on the browser you’re using, the FSGB cases may not be available to read online; each record may need to be downloaded to be accessible. With Firefox browser, however, you may select “open with Firefox” if you want to read the case file, or save the file to your computer. Please use the search button here to locate specific FSGB records.

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FSGB: @StateDept Miscalculates Length of Creditable Federal Service in Annuity Case

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USADF is an independent U.S. Government agency established by the U.S. Congress to support and invest in African-owned and African-led enterprises that improve the lives and livelihoods of people in underserved communities in Africa. See the African Development Foundation Act.
Via FSGB 2020-040:

Held – Grievant established by a preponderance of evidence that the Department of State (“Department” or “agency”) committed grievable errors when it miscalculated her length of creditable federal service and erroneously determined that her 2015-2016 employment with the U.S. African Development Foundation (“USADF”) was not federal service.

Case Summary –

Grievant was employed intermittently by the federal government from 1980 to 2016. In July 1984, grievant, previously a Civil Service (“CS”) employee of the U.S. Agency for International Development (“USAID”), converted to the Foreign Service (“FS”). From July 22, 1984 through at least February 24, 1988, USAID’s records show her as a participant in the Foreign Service Retirement and Disability System (“FSRDS”), paying the required seven percent (7%) mandatory employee contribution, receiving no credits under the Old-Age, Survivors, and Disability Insurance (“OASDI”) program, and not contributing to the Thrift Savings Plan (“TSP”). Upon applying for a pension, however, she was informed by the Department that she was four days short of the minimum five years required to qualify for an annuity.

Grievant asserted that she initially planned to resign from USAID on February 24, 1988, but that she decided to remain at post until March 11, 1988, in the FS and a participant in the FSRDS for those 15 days. She submitted two documents to verify her employment end date of March 11, 1988: a USAID-generated Individual Pay and Leave Record that showed employment by USAID for five pay periods in 1988 and a 1988 State Department FSRDS Participant Record from the Department. Both of those documents showed retirement payroll deductions through March 11, 1988. Grievant also complained that the Department did not consider her 2015-2016 employment with the USADF, a U.S. government agency, as federal service.

The Department denied that grievant was employed by USAID from February 25 to March 11, 1988. The Department relied on a USAID SF-50 form stating that grievant’s retirement date was February 24, 1988. The Department argued that its practice was to use an SF-50 as the only primary evidence available to verify creditable service, rejecting grievant’s documents as less persuasive secondary evidence. The Department offered no explanation for omitting grievant’s USADF employment from the calculation of her federal service.

The Board found that the State Department FSRDS Participant Record was a primary source of verification, that it was supported by the USAID-generated Individual Pay and Leave Record and was a more reliable record than the conflicting SF-50 form. The Board noted errors in the SF-50 form and prior SF-50s of grievant. Accordingly, the Board found that grievant proved by a preponderance of evidence that her creditable federal service at USAID ended on March 11, 1988. The Board also found that grievant was in federal service for the 2015-2016 period, as evidenced by SF-50s prepared by USADF.

The Board directed the Department to recommend an appropriate retirement annuity consistent with this decision and present to grievant for her consideration. The parties were ordered to report the Department’s recommendation of an annuity and grievant’s response to the Board within 30 days of this decision. The Board retains jurisdiction of the case.

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FSGB: Informal Meetings Between Grievant and Rater “Did Not Constitute Counseling”

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Via FSGB Case No. 2020-025
Held – The Board held that grievant has established by a preponderance of the evidence that informal meetings between grievant and her rater did not constitute counseling and that the only formal counseling, which occurred six weeks prior to the end of the appraisal year, in the circumstances of this case, was not timely.
Case Summary:

Grievant, an FS-06 Office Management Specialist, was assigned to a challenging, newly upgraded position with not only the responsibility to support the Consul General (CG), as her predecessor had done, but also to support the Deputy Principal Officer (DPO). The position was upgraded to an FS-05 two months after her July arrival at post.

Grievant appealed the denial of her grievance of her April 2017 EER. She maintained that 1) she had not received timely counseling and 2) certain comments in the EER by her Rater and Reviewer, as well as language in the Developmental Area, were inaccurate and/or falsely prejudicial. She contended that her routine meetings with her rater had been supportive, as the rater admitted, and that the Rater had not advised her that the CG and she were dissatisfied with her progress until six weeks before the end of the appraisal period. At that point, grievant recommended being temporarily relieved of supporting the DPO position to allow her time to establish systems to support both positions. She accomplished that goal shortly after the start of the next appraisal period, but her 2017 EER reflected that she was not fully supporting both positions at the end of that rating period.

The Department contended that her ongoing meetings with her Rater to manage her workload and her acknowledgement of her difficulties in doing so meant that grievant was aware of her deficiencies from the informal counseling. Moreover, the Department contended that six weeks was adequate notice of her need to improve.

The Board held that, in the circumstances of this case, where the job had been greatly expanded, grievant was new at post, and her meetings with her rater were generally to discuss routine aspects of the position, her rater had failed to put her on notice that her progress was deficient. As to the timeliness of the formal counseling, grievant established that she was able to devise a plan to meet the requirements successfully, but she was unable to accomplish it before the end of the rating period. Consequently, six weeks was too short to be timely notice of her deficiency.

Because the Department failed in its obligation to provide counseling mandated under 3 FAH-1 H-2253.2, it was unnecessary for the Board to reach the issue of whether the statements were inaccurate and/or falsely prejudicial. As a remedy, and as requested by the grievant, the Board ordered expungement of the 2017 EER and reconstituted Selection Boards.

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What was the cause for “universal revulsion and anger” at one post?

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Via FSGB Case No. 2020-009 | Interim Decision | February 4, 2021
Held –The Department of State (“Department) met its burden of proving that grievant committed one specification of Improper Personal Conduct, and one charge of Notoriously Disgraceful Conduct. The Department also established that the conduct showed poor judgment and lack of discretion, and that such misconduct had an impact upon the efficiency of the Service. The Department did not meet its burden of proving the charge of Inappropriate Comments and one specification of Improper Personal Conduct. The case was remanded to the Department to re- determine an appropriate consequence in light of the Board’s findings.
Case Summary – Grievant, a married Senior Foreign Service officer, while serving as Management Counselor at the U.S. Embassy REDACTED, was accused of sexual harassment based on inappropriate statements he reportedly made to female colleagues and conduct considered professionally improper. Grievant also appeared in a video published on a local website showing grievant and a local national woman seated together in the driver’s seat of a vehicle on a public road. The website article identified grievant as a foreign diplomat and commented on foreign diplomats and young host country women. Grievant later admitted to having an extramarital affair with the woman in the video, who was employed as a nanny by one of grievant’s subordinates. Grievant requested a voluntary curtailment because of the negative response by members of the embassy community concerning the video and to attend to a family illness.
The Department’s Office of Civil Rights (S/OCR) investigated the sexual harassment allegations and forwarded its report to the Bureau of Human Resources (HR). Based on the findings of the S/OCR and after consideration of a description of the video showing grievant with the foreign national woman in the car, the Department proposed to suspend grievant for eight days without pay as discipline for Inappropriate Comments (three specifications), Improper Personal Conduct (two specifications), and Notoriously Disgraceful Conduct.
Grievant challenged the suspension proposal, however, it was sustained by the Department. After a grievance was denied, grievant appealed to the Foreign Service Grievance Board that found that the Department met its burden of proving that grievant committed one of two acts of Improper Personal Conduct and he engaged in Notoriously Disgraceful Conduct. The Board remanded the case to the Department for reconsideration of the proposed discipline in light of the Board’s decision.

Charge 3: Notoriously Disgraceful Conduct

The Department contends that grievant’s conduct, captured in the video which showed a young woman sitting in front of grievant in the driver’s seat while driving a car, had a negative impact upon mission morale. The Department noted that this video appeared on a popular local website and the existence of the video and its content were widely known within the mission. Grievant also admitted that he was having an extramarital affair with the woman who appeared with him in the video who was employed as a nanny for the family of one of grievant’s subordinates in the mission. The Department cites a statement by the CLO that both grievant’s family and the post family that employed the woman who appeared in the video were deeply affected. Grievant claims that his wife was aware of the relationship and argues that the video did not explicitly show his involvement in a sexual relationship. Nonetheless, the Department concluded that the video exposed the close relationship grievant was engaged in with the nanny of his subordinate, thereby embarrassing his colleagues, his family, and the mission.
[…]
With respect to the Charge of Notoriously Disgraceful Conduct, the Department notes that grievant admitted to having an extramarital affair with the woman in the video and the S/OCR report specifically corroborated that the video was publicized in the media in the host country. The Department argues that the physical closeness exhibited between grievant and the woman in the video, the nanny of one of his subordinates, and grievant’s admission that he was engaged in an affair with the woman, demonstrated his failure to maintain the high standard of conduct required of Foreign Service employees representing the U.S. abroad. The Department also points out that all new Foreign Service employees are briefed about their role representing the U.S. government abroad and the expectation that each maintain the highest standard of conduct demonstrating integrity, reliability and prudence whether at work or during their non- work hours. Further, the publication of the video resulted in embarrassment to others in the mission and disrupted grievant’s effectiveness as Management Counselor because his colleagues and supervisees refused to work with him. In fact, the Department points out that the publication of the video partially motivated grievant to request voluntary curtailment from post, thereby detrimentally affecting management operations at post.
[…]
Grievant maintains that the disciplinary action against him is unwarranted and that the statements upon which the charges and specifications are based are factually inaccurate and mischaracterized. He argues that the Department cannot meet its burden to establish that he engaged in Notoriously Disgraceful Conduct (Charge 3). Moreover, grievant argues that the proposed discipline is excessive for the alleged offenses, that the DO did not give adequate weight to several mitigating factors in his case, and that the penalty, therefore, is unreasonable.
[…]
Grievant maintains that the Department cannot meet its burden of proving that he engaged in Notoriously Disgraceful Conduct, as defined in the regulation. Grievant acknowledges that he did have an extramarital affair but maintains that it was discreet, not conducted publicly, not disgraceful but, instead, it was a meaningful relationship.

[…]
The FAM definition of notoriously disgraceful conduct is normative; that is, it is defined by the reaction to the conduct. In the instant matter, grievant is charged with engaging in an extra-marital affair with a local national woman, which was publicized by inference in a video on local media. Thus, grievant’s conduct is notoriously disgraceful because, were it widely known, it would embarrass or discredit him, the embassy, and the United States, or would subject them to censure or opprobrium. Grievant’s argument that the video was posted to a non- mainstream sensationalist website is unavailing, as the Department does not need to prove that grievant’s extramarital affair was in fact widely known or published by a widely-accessed medium, only that, if known, it would cause the concerns described in the regulation. In fact, though, the Department describes the internet website where the video was posted as popular and the record shows that it was sufficiently well-known that the embassy community quickly saw it, identified grievant and the nanny, and reacted negatively. Judging from the strong negative reaction, described by the Deputy Chief of Mission as “universal revulsion and anger,” we are satisfied that if evidence of the affair and the circumstances were widely known in the host country, a socially conservative country, the embassy and the United States would have been embarrassed and likely censured.
[…]
According to the S/OCR investigator, interviews with the Management staff revealed that the disclosure of the video made grievant’s “relationship with his subordinates irreparably bad [and] … brought forth a torrent of further negative reporting from across the mission about [grievant’s] behavior and his interpersonal skills.” Agency-Level Grievance Decision at 15. In the aftermath of the release of the video, grievant agreed to work from home and discontinued any contact with his subordinates or others at the embassy. Grievant also admitted that he ultimately voluntarily curtailed from post in part due to release of the video, even though the official rationale was listed as his mother’s health situation. The embassy had the unanticipated absence of a key senior official who supervised a large staff and provided administrative services to 15 U.S. government agencies. It is clear to the Board that the evidence supports the Department’s conclusion that grievant’s appearance in the video and his extramarital affair with a subordinate’s nanny led to his discredit as a senior embassy official within the mission and possibly in the wider community; adversely affected the embassy’s ability to carry out its responsibilities when grievant could no longer perform his job.

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FSGB: “Service Need Differential” Posts Get a Bad Recruitment Ad

The fundraising campaign is closer to its goal today than yesterday, but it’s not quite there yet. We are grateful to the more than 450 donors who have supported our annual fundraising to-date. We will not run an indefinite campaign, just a few weeks out of the year.  Help us meet our goal so we can get back to our regular blogging programming without plugging our fundraising. If you are able to help, please pitch in at GFM: https://gofund.me/32671a27. Thanks – DS

According to the Foreign Affairs Manual, a ‘Service Need Differential’ [SND] is an allowance of 15 percent of base salary for employees serving in Historically-Difficult-to-Staff (HDS) posts with an at least 20 percent hardship differential and a standard two-year tour of duty, when the employee agrees to serve for a third year.  Some of the “at least 20 percent” hardship differential posts includes Albania, Azerbaijan, Egypt, a couple posts in China, and more. Djibouti, Ghana, Haiti, Afghanistan, CAR, Cuba, DRC, and some posts in India are in the 25 percent category. Afghanistan, Somalia, Bangladesh, Chad, Iraq, Pakistan are some of the 35 percent hardship posts. The hardship considered includes physical and social isolation; political violence, terrorism and harassment; medical and hospital availability; environmental conditions and sanitation; crime; climate; housing and infrastructure to name some. See more here.
The grievance case below concerns SND payments to a DS agent who served at one of these “historically-difficult-to-staff” posts.  Instead of the State Department just acknowledging that a mistake had been made in this case, the State Department made the argument that the grievant, “as a mid-level employee with several years of experience and facing his third overseas assignment” should have known better to ask the right questions. Whoa!  The agency is saying, it’s his fault, hey?
Footnote indicates that “with respect to the AO’s [Assignments Officer] indication of the candidate’s SND election in the assignment panel notes, the record indicates that the assignment panel notes did in fact include a comment that grievant’s SND decision was “pending.” However, grievant denies that he made that (or any) SND-related election, or that he communicated to his AO that he had elected to defer his decision until after arrival at post.”
The FSGB decided that the grievance appeal was sustained. The Department was ordered to reimburse grievant for SND he would have received from the date of his arrival at post, consistent with the provisions of the Back Pay Act. 5 U.S. Code § 5596.
Via FSGB Case No. 2020-050

HELD – The Foreign Service Grievance Board found that grievant met his burden to show that the Department failed to implement its Standard Operating Procedure SOP B-22 in the process of assigning him to a Service Need Differential (SND) post, a procedural error that resulted in harmful denial to him of SND payments for a period of time. The grievance was sustained.

CASE SUMMARY – Grievant accepted a handshake for assignment to an SND-designated post. He argued that in the process of assigning him to post, the Department failed to implement any of the “Assignment Procedures” specified in its relevant Standard Operating Procedure, SOP B-22. These included provisions that the Assignment Officer should contact grievant by email, provide information regarding the SND Program (including a specified “standard disclosure” covering SND options and the consequences of each), request the employee to indicate which SND option he/she elects, and relay that election to the assignment panel. The SOP advises that an assignment to an SND-designated post should not be made unless the foregoing provisions are carried out. The assignment panel, on the basis of notes of unspecified origin to the effect that grievant’s SND decision was “pending,” assigned him for a two-year tour-of-duty which made him ineligible for SND unless he should later request, and be granted, an extension of his tour to three years’ duration.

The agency denied that grievant had carried his burden of proving that his Assignment Officer (AO) failed to implement SOP B-22, but that even if the AO had failed to do so, grievant as an experienced, mid-level bidder, should not be absolved of any and all responsibility to understand the SND assignment procedures as they applied to him and to seek clarification and/or assistance if he were confused or concerned about the process. Further, the Department argued that in the agency-level grievance, it had provided to grievant (albeit on different grounds, which are abandoned in the instant grievance appeal), all relief to which he is entitled.

The Board found factually that the provisions of SOP B-22 had not been implemented by the Department in grievant’s case. The Board found further that the language of the Assignment Procedures of SOP B-22 is particularly directive, going as far as to advise that assignment to an SND post should not be made unless its stipulated provisions have been carried out. On the issue of harm, the Board found that the agency’s failure to implement the SOP constituted a significant procedural error which denied grievant the opportunity to receive information, counseling, and assistance stipulated in the policy before the panel assigned him to a two-year non-SND assignment which record evidence established he did not elect. The Board ordered payment of SND from the date of grievant’s arrival at post.

Background:

Grievant is an FP-03 Special Agent with the Bureau of Diplomatic Security (“DS”) who has worked for the Department since 2012. He is currently serving as an Assistant Regional Security Officer (“ARSO”) at post, his third assignment. The matters grieved in the instant action concern the manner of grievant’s assignment to, and extension at, post, as they impacted his receipt of SND payments.
[…]
On January 23, 2019, the Department issued cable , captioned “(PII) TMONE – ASSIGNMENT NOTIFICATION – PERSONNEL ASSIGNMENT ([grievant’s name and social security number redacted] FP-03, 2501, Special Agent) (“TM-1,” “the assignment cable”).3 Among other information pertaining to the position, the TM-1 noted that the assignment was for a 24-month tour with an estimated arrival date at post of August 2019. The cable contained the names of grievant’s Assignment/Training Officer [sic], Assignment Technician, and CDO as points of contact. The TM-1 did not identify the post as an SND- designated post, nor did it provide any information on the SND Program or how to participate therein.
[…]
After being informed, in a general manner, of the SND program by colleagues, grievant reached out on November 25, 2019, to post’s human resources officer (“HRO”) by email and requested “procedures to extend for one year and activate SND[.]”5
[…]
After repeated attempts by grievant to obtain a decision on his extension request and SND, on June 11, 2020, the Department finally issued a cable approving his extension for a third year at post. The extension approval cable noted that his election of a 36-month tour made him eligible for SND but did not provide further specifics such as what the effective date of SND eligibility was. Grievant subsequently was informed that the SND payments would commence as of the date of the extension approval cable, i.e., June 11, 2020.

On July 20, 2020, grievant filed an agency-level grievance, arguing that the Department’s failure to follow its pre-assignment SOP procedures for SND posts, compounded by subsequent delays in processing his extension request, improperly deprived him of a financial benefit (i.e., timely commencement of SND payments). As a remedy, he sought retroactive payment of SND (with interest) starting from the date of his arrival at post.

On September 24, 2020, the Department issued an agency-level decision, granting the grievance in part, and denying it in part. The deciding official (“DO”) stated that she was not persuaded that grievant had shown that the Department had failed to follow SOP B-22, finding further that grievant should not be “absolve[d] … of any and all responsibility regarding initiation of the SND process.” Grievance Appeal Submission (“Appeal”), Attachment 2 at 5. She therefore denied that part of the grievance. However, while noting grievant’s delay of over six months in initiating his extension request, the deciding official found that the Department had also let the request sit “idly” for three months. She consequently granted partial relief, directing that SND should be paid effective March 10, 2020, the date on which post issued its extension request cable.

State Department’s Oh, Dear/Even If Argument

The Department argues that record evidence shows that when the panel initially assigned grievant to post, the notes on which it relied stated that grievant’s SND decision was pending. This is consistent with the portion of the SOP “which outlines the employee’s right to delay his/her SND decision until after their [sic] arrival at post . . . .” Response at 5. According to the Department, grievant has failed to offer any evidence that the AO did not discuss the SND program with him or inform him about the elections. The absence of any comments in the “Remarks” section of his TM-1 assignment cable (which grievant advances as evidence that he was not properly advised of SND options before he was assigned to post) is not dispositive of a failure by the AO or CDO to implement the SOP.

The Department also argues that even if the AO and/or CDO had failed to implement the SOP (which the Department denies), “[grievant] should not be absolved of any and all responsibility regarding the initiation of his own SND process, especially if he sought to enjoy the benefit of receiving payments as soon as he arrived at post.”13

Also, if you’re going to a post no one wants to go, you should know more than your Assignments Officer?

The Department further argues that grievant, as a mid-level employee with several years of experience and facing his third overseas assignment, should have recognized that he was bidding on an SND post, and if he had any questions about SND bidding procedures, he knew or should have known to contact his AO and/or CDO for guidance and assistance. However, we find the details of the SND program are sufficiently arcane that the Department felt the need to emphasize the special responsibilities of human resources personnel. The language of SOP B-22, which grievant could not have been expected to know as it is not a familiar Department FAM or FAH provision, is quite particular. It bears repeating that the principal provisions of the Assignment Process fall to the AO and that the language is uniformly directive, not permissive. The SOP directs the AO to contact the employee by email, and one practical consequence of this requirement is to ensure that there be an official record of the communication. The SOP states that the purpose of the email is to explain the SND program, and to ask that he/she make an election among the various SND options (including no-SND and deferral of decision). The AO is further directed to “use the following standard disclosure when contacting the employee.” Half a page of stipulated language explaining the three SND options, the implications of each, and the FAM authority follow. As noted supra, the SOP states in bold typeface that “No assignment for an SND-designated post should be made” unless the AO has advised the employee of the SND options and their implications. The totality of the Assignment Procedures language bespeaks a particular intent that it be implemented to ensure that bidders such as grievant, regardless of experience, be informed uniformly of the program and its details. Accordingly, we find that grievant should not have been expected to be aware of the requirements of the SND program but should have been able to rely on the unique expertise of his AO and the requirements assigned to the AO to provide the information needed to make a choice before his assignment began. Having considered all of the resources to which the Department has pointed, we find that absent the AO’s briefing and support mandated by the SOP, the information in the other Department sources would not necessarily be sufficient, and might even have been meaningless, without the provision of that required context.

The Grievance Board Finds “Harm”

The Department argues that grievant has failed to prove harm resulting from any violation of the SOP, as he has not presented any evidence that he wished to elect, or would have elected, a three-year SND tour. Our considered view is that the language of the Assignment Procedures of SOP B-22 is of a particular character that bespeaks a concern that the procedures be implemented. That is understandable, inasmuch as the SND Program exists to incentivize candidates to bid on historically difficult-to-staff posts, and the SOP seems obviously formulated to ensure that candidates make informed choices among the unique options of the SND Program within a transparent process. In the instant case, the Department’s failure to implement the particularly directive provisions of the SOP denied grievant an opportunity that he would have otherwise had, and which the SOP seems clearly crafted to provide, to be contacted in writing (email), counseled on the basis of prescribed standard language regarding the SND options and implications, and to have his election solicited and transmitted to the panel as the basis for assignment; failing the foregoing, the SOP says that an assignment should not be made. The harm then to grievant was the lost opportunity.

We would like to make an observation about this finding. In finding that failure to implement the SOP deprived grievant of the opportunity to elect a three-year SND tour under the SOP Assignment Procedures, we do not seek to supply an answer to the counterfactual- hypothetical question of whether grievant would have elected a three-year tour if the AO had in fact implemented the SOP. We acknowledge that there is no contemporaneous evidence that he would have made that election prior to his arrival at post. Nonetheless, the harm we find is not that grievant was denied SND payments in accord with an inferred election to be paneled for three years, but rather that he was denied a procedural opportunity pointedly stipulated in the SOP when the AO failed to inform him about the SND Program and solicit his election after he accepted the handshake and prior to paneling him to a two-year non-SND tour. We see no alternative remedy to compensate grievant for this harm other than to order SND to be paid from the date of grievant’s arrival at post.

###

FSGB Case: Revocation of Top Secret Security Clearance and Separation

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Via FSGB Case No. 2020-002:

Held – The Grievance Board found that because the security clearance of the charged employee had been revoked after final agency review, the Department of State established that the proposed separation of the charged employee was for such cause as will promote the efficiency of the Foreign Service.

Case Summary The charged employee, a Diplomatic Security Special Agent, was notified that his Top Secret security clearance was suspended for failure to cooperate in certain medical assessments. The charged employee’s clearance subsequently was revoked. The charged employee appealed the revocation to the Department’s Security Appeals Panel, which sustained the revocation after consideration of the written submissions of both the charged employee and the Department. Because a Top Secret security clearance is a condition of employment for the charged employee and because the revocation of his clearance was final, the Department proposed to separate the employee for cause. After a hearing on the issue, the Board concluded that the Department had established cause for the separation and evidence that the separation would promote the efficiency of the Service.

Background

On July 11, 2014, the Director of the Office of Personnel Security and Suitability, Bureau of Diplomatic Security (DS/SI/PSS), notified the charged employee, via memorandum that his “continued access to classified information was not clearly consistent with the interests of national security.”1 Accordingly, his Top Secret security clearance was suspended pending the outcome of “ongoing Department medical review.” 2 The charged employee held a position as an FS-02 DS Special Agent who required a Top Secret security clearance to perform his duties.

On October 7, 2015, the Deputy Assistant Secretary for Domestic Operations notified the charged employee by letter that his Top Secret security clearance was revoked. The employee was afforded 30 days to request a review of this decision. It appears that a review was requested because on March 13, 2019, the Principal Deputy Legal Adviser, on behalf of the Security Appeals Panel (Panel) notified the employee by letter that the Panel voted to sustain the decision of DS to revoke his Top Secret security clearance. This letter noted that the Panel had convened on February 19, 2019; that the charged employee had appeared and answered questions; and that the Panel took into account his responses, as well as written materials provided by the employee, his private counsel, DS.3

On August 20, 2019, the Director General notified the charged employee that the Department proposed to separate him for cause, under Section 610 of the FSA as amended, in order to promote the efficiency of the Service. The separation proposal stated that all Foreign Service positions require a Top Secret security clearance because all FS positions are “critical sensitive.” 4 Thus, because his security clearance had been revoked after all final reviews, the charged employee could no longer maintain a condition of his employment.

The charged employee responded by email on September 3, 2019 to the proposed letter of separation, stating, “Separating me from the Department does not seem right to me.” 5 The charged employee offered no other written or oral response to explain, rebut, or mitigate the separation proposal.

On January 6, 2020, the Department submitted the transmittal containing the separation proposal to the FSGB. On February 25, 2020, the Board conducted a pre-hearing conference (PHC) with the parties by telephone, during which the Board, the charged employee and the Department agreed upon procedural ground rules and a schedule of events prior to the hearing.6

The Department indicated at the PHC that beyond the documents submitted with the Department’s separation file in this case, the agency did not intend to submit any other exhibits or call any witnesses at the hearing. The charged employee indicated that he did not wish to call any witnesses or submit any documentation to the Board at the hearing. Thereafter, the parties reached an agreement on joint stipulations of fact to be presented at the hearing.7

On April 2, 2020, a hearing was convened by the Board on the separation proposal. The hearing was held telephonically, due to the CoVid 19 coronavirus pandemic, the President’s order to maximize the use of telework and the Governor of Virginia’s “stay at home” emergency order. At the start of the hearing, the Board advised the parties that it had determined that there was no need for a video-conferenced hearing because the parties had advised that they intended to offer no witness testimony. Neither the charged employee nor the Department objected to the use of a telephonic hearing process.

The Board found that a Top Secret security clearance is required for the employee’s position; therefore, the agency established that the charged employee failed to maintain a mandatory condition of employment. The Board concluded that the Department established cause for the separation on a single charge of Failure to Maintain a Condition of Employment and that separation of the charged employee will promote the efficiency of the Foreign Service.

3 According to the Principal Deputy Legal Adviser’s letter, “the Panel focused in particular on concerns relating to guideline I (‘Psychological Condition’). … [T]he Panel took note of the fact that [the charged employee] did not appear at the medical evaluation which [he] had agreed to undergo, [his] email of November 2, 2018, and [his] unwillingness during [his] appearance before the Panel to offer information that it could use to determine whether DS’s concerns had been mitigated.” The record does not reveal any additional information about the predicate for the security clearance suspension or revocation.

###

 

 

FSGB: A Tandem Couple Gets a Penalty, You Guess It — For Being Married

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One of the cases highlighted in the recently released FSGB Annual Report for 2020 is one relating to finances involving  an FS-06 Office Management Specialist (OMS)  married to a Diplomatic Security Special Agent. Two FS employees married to each other is called a tandem couple.
In FSGB Case No. 2019-024, the Board overturned the Department’s application of several Standard Operating Procedures to grievant and her tandem spouse that denied her per diem and related travel benefits during a four-month period of mandatory language training in Washington, D.C. between her first and second assigned posts overseas. The Board found that in addition to internal inconsistencies, the Standard Operating Procedures applied by the Department conflicted with applicable federal statutes and regulations that otherwise governed grievant’s right to receive travel and per diem benefits.
FSGB Case No. 2019-024 Summary

Grievant was an untenured Foreign Service officer of the Department of State (“Department,” “agency”) who was part of a tandem couple. Grievant was directed to her first assignment overseas, at the end of which, she planned to take Home and Annual Leave, followed by sixteen weeks of mandatory language training at the Foreign Service Institute (“FSI”) in Washington, D.C., in advance of an onward assignment. Grievant’s husband, also a Foreign Service officer, requested and was granted Leave Without Pay (“LWOP”) in order to accompany grievant on her first tour. The Department considers LWOP on paper to be an assignment to Washington, D.C. At the end of the LWOP period, grievant’s husband planned to return to Washington to serve in a bridge assignment and to attend work-related training, followed by the same sixteen weeks of mandatory language training and the same onward assignment.

At the end of grievant’s first tour, pursuant to a Standard Operating Procedure (“SOP”), the agency assigned grievant’s husband to “long-term” training at FSI. Under federal statutes and agency regulations, an officer who is in long-term training is authorized to receive locality pay and a Home Service Transfer Allowance but not authorized to receive per diem or an allowance for meals and incidentals. An officer is entitled to per diem and related expenses if he or she is on temporary duty of six months or less.

Another agency SOP requires both members of a tandem couple to be in the same status. Therefore, the Department assigned grievant to “long-term” training at FSI to match her husband’s assignment. Grievant requested and was denied a temporary duty assignment for the duration of her training. She filed a grievance challenging the agency’s application of SOPs that denied her the right to receive federally authorized per diem and related benefits.

The Department denied the grievance, arguing that because grievant was not contending that any of the applied SOPs was contrary to law, regulation, or collective bargaining agreement, she was not legally allowed to challenge them. The Department argued further that the federal benefits statutes and regulations upon which grievant relied did not apply to her because of the operation of the agency SOPs that required tandem couples to be in the same assignment status. The Department maintained that grievant did not establish that any of the SOPs were misapplied.

The Board reviewed the primacy of the federal legislation and regulations versus the agency SOPs and concluded that the federal statutes and regulation were controlling. The Board concluded that under the applicable statutes and regulation, grievant was entitled to per diem and related benefits, in the absence of application of the SOPs. The Board further found that the SOPs were internally inconsistent and conflicted with federal law and, therefore, grievant’s challenge to them was grievable. The Board concluded that grievant proved by preponderant evidence that the SOPs that were applied in this instance improperly prevented her from receiving per diem and other benefits to which she was entitled. The grievance was therefore sustained and the Department was ordered to reimburse grievant for the benefits she should have received under federal law.
[…]
Grievant points out that she and her husband did not have a local residence in the Washington DC area, therefore, they were obligated to spend money on housing, meals and incidentals. As proof that the SOPs were erroneously applied to her family, grievant cites the fact that the Department spent more money assigning her to Washington, D.C. than if she had been detailed to FSI in a TDY capacity. She states that the Department delivered to her rental property in Washington, D.C. her household effects (“HHE”), her privately owned vehicle (“POV”), and items that had been in storage; unpacked their belongings; and then repacked them less than six months later. Had the Department allowed her to receive per diem while on short-term training, her husband would not have received HSTA and they would not have received the HHE, POV transportation, or storage shipment.

The Board concluded that grievant, a member of a tandem couple, proved by preponderant evidence that the Department of State improperly denied her per diem and related benefits when it applied several Standard Operating Procedures that were at times internally inconsistent and that conflicted with applicable federal statutes and regulations that otherwise governed grievant’s right to receive travel benefits during a period of sixteen weeks of language training between two overseas.
Grievant argued that the Department’s SOP A-11a discriminates against tandem couples by treating them as a single entity, rather than two separate employees, each with their own respective, individual entitlements. She argues that there is no law or existing regulation that mandates that both members of a tandem couple remain in the same assignment status.
Grievant explained the practical difficulties of the policy application when she wrote to HR/CDA:

Since HR/CDA does review on a case-by-case basis and exceptions have been granted in the past, we do kindly ask guidance on how to pursue having [the denial of our request for per diem] reviewed. …. [W]e have been told we may have to be assigned as a PCS [Permanent Change of Station] vs TDY. … The arbitrary interpretation of an SOP, rather than a ruling that is backed by the FAM, is going to create undue hardship on our family and unnecessary expenses for the State Department by having to receive all of our HHE, storage, POV, etc, only to have it packed back up again within 4 months. Shipping our HHE from to DC where it will be unpacked then repacked, then shipped again to is going to cost significantly more than having it held in temp storage in ELSO [European Logistical Support Office] then sent directly. I understand that we have the option to pay to keep our belongings in storage, but that forces us into a furnished apartment for 4 months. I contacted Oakwood, and a 2 bedroom apartment will cost over $23,000 for this time frame, which is just absurd. Even with DC locality and HSTA that is an extreme amount of money that I have to pay to attend required training.

Note that a hypothetical FS-06/1 employee earns approximately $42K. A 4-month rental of a furnished apartment at $23K would cost more than half that employee’s annual salary.
FSGB’s take on SOPs vs. Federal Statute:

“… where there is conflict between a state law and a federal one, the Supreme Court has stated that the federal statue must take effect. It follows, then, a fortiori, that where there is conflict between a unilaterally established agency procedure and a federal law or regulation, the procedure must equally give way to the operation of a federal statute “where it is impossible … to comply with both.” Id. Here, the Department could not comply with the federal per diem statutes, as grievant requested, solely because of its application of legally inferior SOPs. We conclude that this was clear error.”

16 Weeks is a “Long Term Assignment”, Who Knew?

“We further find that by mandating that grievant was on an assignment to long-term training in Washington, D.C., when she was in fact in training for no more than sixteen weeks, she did not have a home in Washington, she had not previously been assigned there, and she was mandated to take language training for her onward assignment overseas, the Department violated its own SOPs. Specifically, the Department violated the provision in SOP A-11a that, “The Department’s policy is to ensure that no advantage or disadvantage accrues to any employee through the assignment process on the grounds of marital status.” (Emphasis added). Application of this SOP put grievant at a clear disadvantage because she was not permitted to receive the benefits of the federal statutory per diem and M&IE benefits, solely because she was part of a tandem couple. The record is clear that had grievant not been married to her husband, she would have been entitled to seek a TDY assignment to Washington for her short-term training.

A tandem married couple penalty:

“… the Board finds that the purpose of the SOPs applied in this instance was to prevent any one employee from receiving duplicate benefits, such as per diem and locality pay, or employee benefits and family member benefits. Nothing in the SOPs suggests that the purpose was to prevent one employee from receiving certain benefits on the basis solely that the employee was married to another employee who received different benefits. If this were the case, then the procedures would advantage unmarried, but cohabiting, couples over tandem married couples.

Here’s the nutty part. When the FSGB became aware that AFSA was requesting a change in the very policies at issue in this case, it asked the Department about the proposed revision. The Department told FSGB:

Please find attached a copy of the revised SOP A-11a, which was implemented by the Department in December 2019 and is currently being announced within the Department. … As the revisions to SOP A-11a were implemented after [grievant’s] assignment in this case, the revisions have no impact on the application of the prior version of SOP A-11a to [her]. In her appeal, [grievant] contends that SOP A-11a should not have been applied to her and that she should have been placed on TDY status, that SOP A-11a was contrary to law, and that SOP A-11a discriminated based on marital status. The revision of SOP A-11a does not validate any of the arguments raised in [grievant’s] appeal.

Holymoly macaroni! It does, good heavens, it does validate all! Exclamation points added !!!!!!!!!!!!!!!!!!!!!!!!
Seriously, how does one learn to think with such mental and linguistic contortions?
We could almost imagine the FSGB Board members shaking their heads in disbelief when it said:  “The Department concedes that the policy has changed officially, precisely as grievant requested in her case. Essentially, the Department argues that the revised policy should not be applied retroactively and, therefore, grievant’s appeal should be denied.”
FSGB cases cannot be read online without downloading the files.  Files are available here.

 


 

 

FSGB Annual Report 2018: Judicial Actions Involving Board Rulings

 

The following is excerpted from the Foreign Service Grievance Board Annual Report 2018. This is a good time to remind folks that while names/posts and identifying details are typically redacted from the Record of Proceedings (ROPs) routinely posted in the publicly available website fsgb.gov, once the case is filed in federal court, the records are usually publicly accessible and are unredacted (unless the case is sealed).

As described in last year’s report, USAID OIG had recommended that the grievant in FSGB Case No. 2012-057 be separated for cause. After two hearings, the Board approved the agency’s decision. The grievant appealed to the U.S. District Court for the District of Columbia. In a decision issued October 12, 2018, the court upheld the Board’s decision on cross-motions for summary judgment. The grievant has appealed to the U.S. Court of Appeals for the D.C. Circuit, challenging the District Court’s and Board’s construction of section 7(b) of the IG Act, which protects the confidentiality of employee informants.

In FSGB Case No. 2014-018, the grievant had requested a waiver of collection of a substantial overpayment of her deceased mother’s survivor’s annuity. The Department contended that she was not entitled to consideration of a waiver because the overpayment was made to her mother’s estate; under Department regulations, estates are not entitled to waivers. The Board concurred and grievant appealed. In a decision issued January 19, 2018, the D.C. district court found that the regulation denying waivers to estates was valid, but that the FSGB had erred in determining that the overpayments were made to the mother’s estate rather than to grievant as an individual. The court remanded the case for the Department and the Board to decide the request for the waiver on its merits. The waiver request is currently pending with the Department.

The grievant in FSGB Case No. 2015-016 filed a complaint in the U.S. District Court for the District of Columbia in 2017 against the Department and his former rater and reviewer requesting monetary damages related to the Board’s denial of his grievance. He had contested two EERs and a low ranking. The district court dismissed the complaint as untimely in a decision issued March 30, 2018. The U.S. Court of Appeals for the District of Columbia Circuit affirmed that decision on December 28, 2018.

The grievant in FSGB Case No. 2013-005 contended that he was deprived of certain benefits, such as promotion consideration, during a five-year assignment to an international organization. The Department found him ineligible for the benefits because his assignment to the organization was effected through a “separation and transfer” agreement, rather than a “detail.” The Board affirmed the Department’s decision and the United States District Court for the District of Colombia upheld that decision on appeal in a decision issued in 2016. The grievant had also appealed the Board’s decision in a second, related, case, FSGB Case No 2014-024, in which he had claimed certain benefits based upon his separation and transfer and subsequent reemployment with the Department. The Board dismissed his second grievance on the grounds of claims preclusion. In a decision issued March 14, 2018, the district court concluded that the Board’s decision was neither arbitrary and capricious nor contrary to law and dismissed his claims. The grievant appealed both decisions to the United States Court of Appeals for the District of Columbia Circuit, and that matter remains pending.

The grievant in FSGB Case No. 2017-014 was denied tenure and scheduled for separation from the Foreign Service. Consequently, the Department ordered her to leave her overseas post and assigned her to a position in Washington, D.C. The grievant filed a grievance with the Department challenging her transfer on several bases. The Department denied the grievance, and the grievant appealed to the Board. The Board denied all of grievant’s claims. It further found that, since no statute or regulation had been violated, it lacked jurisdiction to overturn an assignment decision. The grievant appealed the decision to the U.S. District Court for the District of the Virgin Islands, St. Croix Division. In a decision issued September 24, 2018, the court affirmed the Board’s decision.

Decisions were issued this year in two other cases filed by the same grievant, stemming from the same sets of circumstances but not involving appeals of Department or Board grievances. The grievant filed a case under the Equal Pay Act of 1963 in the U.S. Court of Federal Claims alleging gender-based discrimination in pay and benefits. She claimed that the Department discriminated against her by paying her less and providing her with fewer benefits than a similarly-situated male employee. The court initially dismissed the case, finding that it lacked jurisdiction because the same appeal was pending in another court at the time she filed. However, that decision was overturned by the circuit court and the case was remanded to the Court of Claims. The grievant also filed two identical complaints in the U.S. District Court for the District of the Virgin Islands, St. Croix Division, alleging discrimination and retaliation by the Department under the Age Discrimination in Employment Act. In both cases, the court dismissed all but one of the claims. The grievant also filed a complaint in the U.S. District Court for the District of Columbia alleging nearly identical discrimination and retaliation by the Department under Title VII of the Civil Rights Act of 1964. Therefore, the U.S. District Court for the District of Columbia has stayed its proceedings pending a decision in the U.S. District Court for the District of the Virgin Islands case.

An appeal of the Board’s 2017 decision by the State Department and USAID/OIG in another long-running case remains pending in the D.C. District Court following briefing of crossmotions for summary judgment in Civil Action No. 18-cv-41 (KBJ). As described in previous annual reports, the grievant in FSGB Case No. 2013-031 contested the decision to calculate his retirement annuity based on the application of a pay cap on his special differential pay that had not been applied when his salary was paid. In 2014, the Board initially upheld the agency’s decision. On grievant’s appeal, the district court in Civil Action No. 14-cv-1492 (KBJ) vacated the Board’s decision and remanded the case to the Board for further review. On remand, the Board in FSGB Case No. 2013-031R and No. 2016-030 issued a decision granting the grievant calculation and payment of his annuity that he sought. The Board denied the Department’s request for reconsideration of that decision. The Department and USAID/OIG jointly appealed the Board’s decision on remand to the district court in Civil Action No. 18-cv-41 (KBJ).

The 2015 Annual Report reported that the grievant filed an appeal of the Board’s decision in FSGB Case No. 2014-003 in Federal District Court, District of Colombia, claiming that the Department violated the Americans with Disabilities Act and Rehabilitation Act when it separated her. That appeal is still pending.

#

FSGB finds no merit in argument that @StateDept has “unfettered discretion” to grant or deny SNEA benefit

Via FSGB Case No. 2018-016:

“The Department next argues that its granting a SNEA under section 5924 is “discretionary,” and in any event must be paid in accordance with the DSSRs. As we have previously stated, the prior authorization the grievants sought, for reimbursement after their arrival at post, is fully consistent with the DSSRs. Further, we find no merit to the argument that the Department has unfettered discretion under section 5924 to grant or deny a SNEA benefit to employees in any way it may see fit. Rather, law and regulation must limit its discretion.”

Via giphy.com